CITY OF CHICAGO v. UNITED STATES

January 8, 1969

CITY OF CHICAGO, THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, VILLAGE OF MILFORD, CITY OF WATSEKA, CITY OF HOOPESTON, CITY OF DANVILLE, CITY OF TERRE HAUTE, CITY OF VINCENNES AND MAURICE F. RADRIZZI, PLAINTIFFS,v.UNITED STATES OF AMERICA, INTERSTATE COMMERCE COMMISSION AND CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY, DEFENDANTS.

Before Knoch, Senior Circuit Judge, and Robson and Perry,
District Judges.

The opinion of the court was delivered by: Robson, District Judge:

MEMORANDUM AND ORDER

This is a suit to review certain findings and conclusions of
the Interstate Commerce Commission. The defendant railroad has
moved to dismiss. This court is of the opinion that the motion
should be granted.

On August 31, 1967, the Chicago & Eastern Illinois Railroad
Company ("Eastern") gave notice under 49 U.S.C. § 13a(1) that,
effective October 1, 1967, its trains numbered 93 and 54
between Chicago, Illinois, and Evansville, Indiana, would be
discontinued. On September 18, 1967, the Interstate Commerce
Commission ("Commission") entered an order requiring Eastern to
continue operating trains 93 and 54 pending an investigation by
the Commission. After hearings and briefs, Division 3 of the
Commission on January 25, 1968 (served January 31, 1968),
decided to terminate its investigation, and filed a report
outlining its reasons. A petition for reconsideration was
denied on May 8, 1968. This suit was filed shortly thereafter.
A three-judge court was convened and a joint hearing (with
Tennessee Public Service Comm. v. United States, D.C.,
294 F. Supp. 1106) was held on November 4, 1968.

It has been conceded by both sides that when the Commission
decides not to enter into an investigation, there is no
judicial review, even though there may be cities and states
which might be "aggrieved" by the discontinuances. State of
New Jersey v. United States, 168 F. Supp. 324 (D.N.J. 1958),
affirmed per curiam 359 U.S. 27, 79 S.Ct. 603, 3 L.Ed.2d 625
(1959); Sludden v. United States, 211 F. Supp. 150 (M.D.Pa.
1962). In the New Jersey case, supra, at 329, the court said
that the Commission's order foreclosing an investigation was

"nothing other than an announcement that the
Commission intended to take no action with
respect to the railroad's notice of intention to
discontinue the ferries. Section 13a(1) clearly
leaves to the absolute discretion of the
Commission the determination of whether or not
it * * * shall make any investigation of the matter
or avail itself of its temporary veto power by
way of suspension within the limitations of the
Act."

The instant case, contend the plaintiffs, has a crucially
different element: The Commission here entered into an
investigation, held hearings, made findings, and issued an
order terminating the investigation. Even though the
plaintiffs concede, as they must, that the statute [§ 13a(1)]
was the source for the authority to discontinue, and not any
order or action of the Commission, they argue that judicial
review exists as to the order terminating the investigation
under 28 U.S.C. § 1336, which provides for review of Commission
"orders." The question whether such a Commission order does
fall under § 1336 has been discussed at length in several prior
decisions.

In State of Minnesota v. United States, 238 F. Supp. 107, 112
(D.Minn. 1965), the court determined that the report and
findings filed after the investigation was terminated were
both "gratuitous" acts. The reasoning behind the Commission's
decision to terminate, the court continued, even though it
showed that the Commission "decided" that the discontinuances
were proper, is part of the power to terminate and within the
"sole discretion" of the Commission, and not subject to
judicial review. The court reasoned that the primary purpose
of an investigation and the hearings was to give the
Commission enough information so that it would be able to
reach a sound judgment as to whether it should interfere with
the proposed cutbacks in rail service. Two situations were
posed: (1) Where the Commission knows enough about the
situation, as in the New Jersey case, supra, at 328, it will
hold no investigation, and the discontinuance will occur
automatically; and (2) Where the Commission does not know
enough about the problem, it will investigate, hold hearings,
determine (as in this case) that the discontinuance does not
warrant its interference, terminate the investigation, and the
discontinuance will still occur automatically. There is, said
the court, no logical difference between the two situations.
Where the Commission decided to take action, the order
requiring continuance for one year would be reviewable;
however, the "mere decision of the Commission to take no action
is not." Minnesota, supra, at 112. To provide review of
decisions to terminate investigations, concluded the court,
would not only be contrary to the clear meaning of § 13a(1),
but would be poor policy, "since it might even encourage the
Commission not to investigate doubtful cases." Id., at 113.

The court in State of New Hampshire v. Boston and Maine
Corp., 251 F. Supp. 421 (D.N.H. 1965), recognized that there
might be some unfairness here. However, it said that Congress,
in meeting what was almost a crisis situation, could provide
review for one side (the railroads), especially where the
other side would be seeking review of Commission "non-action,"
if there were cogent policy considerations to call for such a
result. Id., at 425. It is entirely within the spirit of the
legislation to have given the railroads rapid relief without
lengthy review. In fact, it was the delay inherent in the
proceedings before the state commissions that called forth the
passage of Section 13a(1). See the discussion of the
legislative history in, e.g., State of Vermont v. Boston and
Maine Corp., 269 F. Supp. 80, 84 (D.Vt. 1967).

These considerations sufficiently meet, in this court's
opinion, the contention by two later courts that Congress did
not intend to deny judicial review in the present
circumstances. Vermont, supra; City of Williamsport v. United
States, 273 F. Supp. 899, 902-903 (M.D.Pa. 1967).*fn1 Further
supporting this conclusion is the fact that in Section 13a(2),
which deals with wholly intrastate operations, Commission
approval is expressly necessary before a railroad can
discontinue any service. 49 U.S.C. § 13a(2). The provisions,
therefore, in 28 U.S.C. § 1336, that only Commission "orders"
are reviewable, call for judicial review in cases falling under
Section 13a(2). But where, as in Section 13a(1), the statute is
self-implementing, no comparable "order" of the Commission is
involved. Taking the statute in its entirety, it seems apparent
that Congress intended to deny judicial review in the instant
case.*fn2

This court, in view of its opinion on the jurisdictional
issues, does not pass on the other questions presented.

It is therefore ordered that the defendant Chicago & Eastern
Illinois' motion to dismiss be, and it is hereby granted ...

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